Johnston v. Commissioner of Social Security Administration

Filing 24

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Patricia A. Johnston. It is RECOMMENDED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED. Objections to R&R due by 1/13/2014. Signed by Magistrate Judge Norah McCann King on 12/26/2013. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PATRICIA A. JOHNSTON,
Plaintiff,
vs.

Civil Action 2:13-cv-368
Judge Graham
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is now before the Court on Plaintiff’s, Patricia A. Johnston,
Statement of Errors (“Statement of Errors”), Doc. No. 14, the
Commissioner’s Opposition to Plaintiff’s Statement of Errors, Doc. No.
22, and Plaintiff’s Reply, Doc. No. 23.
Plaintiff Patricia A. Johnston filed her applications for
benefits in February 2009, alleging that she has been disabled since
April 1, 2003.

PAGEID 186, 193.

The applications were denied

initially and upon reconsideration, and plaintiff requested a de novo
hearing before an administrative law judge.
An administrative hearing was held on February 27, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did

Julie Svec, who testified as a vocational expert.

PAGEID 92.

In a

decision dated March 22, 2012, the administrative law judge concluded
that plaintiff was not disabled from April 1, 2003, through the date
of the administrative decision.

PAGEID 79.

That decision became the

final decision of the Commissioner of Social Security when the Appeals
Council declined review on March 1, 2013.

PAGEID 54.

Plaintiff was 45 years of age on the date of the administrative
law judge’s decision.

See PAGEID 79, 186.

Plaintiff has a limited

education, is able to communicate in English, and has past relevant
work as a cook, factory laborer, and cashier.

PAGEID 77-78.

Plaintiff was last insured for disability insurance purposes on
September 30, 2009.

PAGEID 66.

She has not engaged in substantial

gainful activity since April 1, 2003, her alleged disability onset
date.
II.

Id.
Administrative Hearing
Plaintiff testified at the administrative hearing that she

stopped working in 2007 because she “couldn’t handle standing any
longer.”

PAGEID 96.

She is able to lift 20 pounds, sit for about a

half an hour at a time, and stand for 20 minutes at a time.

Id.

Plaintiff can use her hands, but she has trouble lifting her arms
because of nerve damage in her neck.

PAGEID 97.

Although she

underwent surgery on her right shoulder she is able to lift her arm to
only waist level because of shooting pain in her arm and neck.
100-01.

PAGEID

Plaintiff also has severe leg pain, neck problems, and lower

back problems.

She rated her back pain at 8/10 on a typical day.

2

PAGEID 101-02.
PAGEID 98.

Pain medications help and cause no side effects.

Plaintiff also underwent surgery on her right ankle, which

she described as “still a little tender.”

PAGEID 100.

Plaintiff also testified to depression. She has taken medication
and treated with a counselor, both of which helped her depression.
PAGEID 99.

She has trouble concentrating and remembering such things

as names, addresses and telephone numbers.

PAGEID 103.

Plaintiff lives alone and is able to cook, perform some household
chores, with breaks, and wash dishes if she can sit down.
98.

PAGEID 97-

On a typical day, plaintiff spends most of her time on the couch

watching television.
rarely does so.

PAGEID 101, 103.

PAGEID 98.

She is able to drive, but

She goes grocery shopping once a month

for approximately 20 minutes at a time.

Id.

Plaintiff testified that she suffers from asthma, although the
condition does not limit her ability to work.

PAGEID 99.

She

believes that she could perform a job that does not require lifting
and which would allow her to sit most of the time and get up when
necessary to stretch her legs.

PAGEID 104.

The vocational expert was asked to assume a claimant with
plaintiff’s vocational profile and the residual functional capacity
eventually determined by the administrative law judge.

PAGEID 105-07.

According to the vocational expert, such an individual could not
perform plaintiff’s past relevant work as a cashier, cook, or factory
laborer, but could perform such jobs as document preparer, addresser,
and surveillance system monitor.

Id.

3

III. Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of degenerative disc disease, fibromyalgia
syndrome, depression, panic disorder with agoraphobia, sciatica,
history of asthma, and obesity.

PAGEID 66.

The administrative law

judge also found that plaintiff’s impairments neither meet nor equal a
listed impairment and leave plaintiff with the residual functional
capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except that the claimant is further limited to
work involving only simple, routine, and repetitive tasks;
no
strict
time
pressures
or
production
quotas;
no
unpredictable changes in work routine; no more than
occasional interactions with coworkers, supervisors, and
the public; no more than two hours of standing or walking;
no more than frequent stooping or crouching; no climbing of
ladders, ropes, or scaffolds; no hazards; no concentrated
exposure to pulmonary irritants; and no overhead reaching
with the right arm.
PAGEID 67-69.

Although this residual functional capacity would

preclude plaintiff’s past relevant work as a cook, factory laborer,
and cashier, the administrative law judge relied on the testimony of
the vocational expert to find that plaintiff is nevertheless able to
perform a significant number of jobs in the national economy,
including such jobs as document preparer, addresser, and surveillance
system monitor.

PAGEID 77-79.

Accordingly, the administrative law

judge concluded that plaintiff was not disabled within the meaning of
the Social Security Act from April 1, 2003, through the date of the
administrative law judge’s decision.

4

PAGEID 79.

IV.

Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

Plaintiff argues, first, that the administrative law judge
erred in assigning “minimal weight” to the opinion of Nicole A.
Leisgang, Psy.D.

Statement of Errors, pp. 6-9.

5

Plaintiff was

psychologically evaluated by Dr. Leisgang on September 30, 2009.
PAGEID 512-18.

Plaintiff reported that she “was seeking disability

compensation due to recurrent episodes of depression during which time
‘I feel worthless . . . I can’t take care of myself . . . I don’t
trust anybody . . . I don’t like crowds . . . I’m a nervous wreck.’”
Id.

Plaintiff reported being anxious and depressed, having recurrent

episodes of depression and panic attacks, and avoiding people.

Id.

Plaintiff “endorsed a sense of impending doom, discomfort with crowds
and strangers, difficulty trusting others, a strong and noticeable
startle response, and feelings of hopelessness and helplessness.”

Id.

Plaintiff also reporting gaining 20 pounds in the prior six months.
PAGEID 513.
Dr. Leisgang described plaintiff as anxious, noting that
plaintiff engaged in only limited eye contact and shuffled her feet.
Dr. Leisgang also characterized plaintiff as rather depressed,
displaying a restricted affect and a downcast facial expression, spoke
in a monotone voice, and cried throughout the evaluation.

PAGEID 514.

Dr. Leisgang assigned a global assessment of functioning score (“GAF”)
of 451 and diagnosed major depressive disorder, recurrent, severe,
without psychotic features, and a panic disorder without agoraphobia.
1

The GAF scale is a method of considering psychological, social,
and occupational function on a hypothetical continuum of mental
health. The GAF scale ranges from 0 to 100, with serious
impairment in functioning at a score of 50 or below.
Scores
between 51 and 60 represent moderate symptoms or a moderate
difficulty in social, occupational, or school functioning . . . .
Norris v. Comm’r of Soc. Sec., No. 11-5424, 2012 WL 372986 (6th Cir. Feb. 7,
2012).

6

PAGEID 515-16.

According to Dr. Leisgang, plaintiff was “markedly

impaired by her emotional difficulty” in her ability to relate to
others, including fellow workers and supervisors, and in her ability
to withstand the stress and pressure associated with day to day work
activity.

PAGEID 516-17.

Plaintiff was “moderately impaired by her

emotional difficulty” in her ability to understand, remember, and
follow instructions and in her ability to maintain attention,
concentration, persistence, and pace.

Id.

If plaintiff were granted

disability benefits, Dr. Leisgang believed that plaintiff would be
able to manage her funds.

PAGEID 517.

An administrative law judge is required to evaluate every medical
opinion, regardless of its source.
416.927(c).

20 C.F.R. §§ 404. 1527(c);

However, not every medical opinion is treated equally;

the Commissioner’s regulations describe three classifications of
acceptable medical opinions: (1) nonexamining sources;2 (2) nontreating
sources (or examining sources); and (3) treating sources.3

As a one-

time consultative psychological examiner, Dr. Leisgang is properly
classified as a nontreating source.

See 20 C.F.R. §§ 404. 1502,

416.902 (“Nontreating source means a physician, psychologist, or other
acceptable medical source who has examined [the claimant] but does not

2

A nonexamining source is “a physician, psychologist, or other acceptable
medical source who has not examined [the claimant] but provides a medical or
other opinion in [the claimant’s] case.” 20 C.F.R. §§ 404.1502, 416.902.
3
A treating source is the claimant's “own physician, psychologist, or other
acceptable medical source who provides [the claimant], or has provided [the
claimant], with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].” Id.

7

have, or did not have, an ongoing treatment relationship with [the
claimant].”).
The opinion of a treating source is entitled to the most weight;
if an administrative law judge does not give “controlling weight” to
the medical opinion of a treating source, he must provide “good
reasons” for discounting the opinion.

See Rogers v. Comm’r of Soc.

Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting Soc. Sec. Rul. 96-2p,
1996 WL 374188, at *5); Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514
(6th Cir. 2010).
sources.”

“However, this requirement only applies to treating

Ealy, 594 F.3d at 514 (citing Smith v. Comm’r of Soc. Sec.,

482 F.3d 873, 876 (6th Cir. 2007)(emphasis in original)).

In

considering the opinion of a nontreating source, such as Dr. Leisgang,
“the agency will simply ̔[g]enerally [] give more weight to the
opinion of a source who has examined [the claimant] than to the
opinion of a source who has not examined’[the claimant].”
(quoting 20 C.F.R. § 404.1527(d)(1)).
875.

Id.

See also Smith, 482 F.3d at

In determining how much weight to give the opinion of a

nontreating source, an administrative law judge should still “consider
factors including the length and nature of the treatment relationship,
the evidence that the physician offered in support of her opinion, how
consistent the opinion is with the record as a whole, and whether the
physician was practicing in her specialty.”

Ealy, 594 F.3d at 514

(citing 20 C.F.R. § 404.1527(d)).
In the case presently before the Court, the administrative law
judge expressly considered Dr. Leisgang’s opinion, but assigned

8

“minimal weight” to that opinion:
Much as with the psychological evaluation conducted for the
county application, the claimant was somewhat less than
entirely
candid
with
the
psychological
consultative
examiner, although the claimant did endorse a more
representative scope of daily activities. The claimant was
assessed with relatively restrictive limitations (including
marked limitation in relating to others and withstanding
the stress and pressure of day-to-day work activity and
moderate limitation in understanding, remembering, and
carrying
out
instructions
and
maintaining
attention,
concentration, persistence, and pace) and a low GAF score
of 45.
However, I note that this was based on the
claimant’s own reported symptomatology.
In terms of
functioning, the claimant’s GAF score was surmised to fall
within the 51-60 range.
Curiously, despite finding at
least
moderate
limitation
in
all
four
work-related
activities, the claimant was thought to be capable of
managing her own funds.
Lastly, I note that the brief
mental health treatment that the claimant did receive,
which consisted largely of medication therapy, was found to
be effective.
(Exs. 10F, 24F).
Much of the claimant’s
symptomatology was occasioned by situational stressors,
such as the breakdown of her marriage, the death of a
friend, or the need to euthanize a pet dog.
Overall, the
psychological consultative examiner’s opinion relies too
heavily and uncritically on the claimant’s own reported
symptoms. This is particularly so in light of the minimal
observed symptomatology.
Accordingly, I give this opinion
minimal weight.
PAGEID 76 (citations omitted).
The administrative law judge’s analysis is sufficiently
specific as to the weight given to Dr. Leisgang’s opinion and the
reasons for that assessment.

It is also apparent that the

administrative law judge considered the appropriate factors in
evaluating Dr. Leisgang’s opinion.

Furthermore, the administrative

law judge’s reasons for assigning “minimal weight” to Dr. Leisgang’s
opinion are supported by substantial evidence.

As the administrative

law judge found, Dr. Leisgang’s GAF assessment relied, at least in

9

part, on plaintiff’s own reported symptomatology, see PAGEID 515 (“In
terms of symptoms, she appeared to be anxious and rather depressed.
She described herself as continually anxious and depressed and alluded
to worry, crying, withdrawal, anhedonia, decreased attention and
concentration skills, suicidal ideation, panic attacks, avoidant
behavior, and symptomatology associated with PTSD.

As such, her

symptom severity must be rated as falling between 41 and 50.”), 515-16
(“In terms of functioning, she spends most of her time at home.
has one friend and sees her only ‘every once in a while.’

She

She cares

for her home and pets although her parents assist her with meal
preparation.

She does have hobbies.

From a functional standpoint,

her GAF must be rated as falling between 51 and 60.”). Moreover, there
is substantial evidence to support the administrative law judge’s
conclusion that plaintiff “was somewhat less than entirely candid with
the psychological consultative examiner.”

PAGEID 76.

As noted by the

administrative law judge, see PAGEID 75, some of plaintiff’s accounts
of how she injured herself, including moving furniture, PAGEID 351
(January 2006), being knocked over by a dog (and walking two miles a
day), PAGEID 332 (September 2008), tripping over a dog in her yard,
PAGEID 759 (November 2009), and “stepp[ing] in a hole,” PAGEID 833
(March 2011), and her testimony at the administrative hearing, see
PAGEID 97-98 (testimony that plaintiff is able to cook), all suggest
that plaintiff engaged in a broader range of daily activities than she
reported to Dr. Leisgang.

See PAGEID 513 (indicating, inter alia,

that plaintiff spends most of her time at home and is able to assist

10

with household chores, but that her parents help with meal
preparation).
Although plaintiff argues that the “factors suggest Dr.
Leisgang’s report should have been granted greater weight,” Statement
of Errors, p. 9, this Court will not reevaluate the factors where, as
here, the administrative law judge applied the proper standards and
his decision is supported by substantial evidence. See Richardson v.
Perales, 402 U.S. 389.
Plaintiff also contends that the administrative law judge erred
in assigning “minimal weight” to the opinion of Terry R. Hayes, Ph.D.
Statement of Errors, pp. 10-11.

Plaintiff was interviewed by Sabrina

D. Morris, PCC-S, on September 9, 2009, and Ms. Morris and Dr. Hayes
completed a mental functional capacity assessment on that same date.
PAGEID 568-73.

Dr. Hayes described plaintiff as disheveled and

displaying poor eye contact and noted that plaintiff seemed angry and
withdrawn during the interview.

PAGEID 571.

Plaintiff endorsed

symptoms of depression: “feelings of worthlessness; feelings of should
not even be here to take up space to breathe; prays to die during her
sleep; recurrent thoughts of death; increased irritability; sadness
more days than not; inability to complete daily tasks; and insomnia.”
PAGEID 572.

Plaintiff also endorsed symptoms of social anxiety: “[‘]I

don’t trust people other than my parents[’]; has panic attacks in
crowds; gets nervous around people; avoids leaving her home for fear
of having panic attacks; heart races; dizziness; tightness in her
chest; and believes she is going to die.”

11

Id.

Dr. Hayes noted that

plaintiff’s short-term memory appeared to be impaired and that
plaintiff had poor concentration, insight, judgment and decisionmaking skills.

PAGEID 571-72. Dr. Hayes assigned a GAF of 51 and

diagnosed major depressive disorder, recurrent, severe, without
psychotic features; panic disorder with agoraphobia; and personality
disorder, not otherwise specified.

Id.

According to Dr. Hayes,

plaintiff was markedly limited in 16 out of 20 areas of functioning
related to understanding and memory, sustained concentration and
persistence, social interaction, and adaptation; plaintiff was
moderately limited in the remaining four categories of functioning.
PAGEID 568.
As an expert who examined plaintiff on a single occasion, Dr.
Hayes is also properly classified as a nontreating source.
C.F.R. §§ 404. 1502, 416.902.

See 20

As discussed supra, an administrative

law judge who evaluates the opinion of a nontreating source must
“consider factors including the length and nature of the treatment
relationship, the evidence that the physician offered in support of
her opinion, how consistent the opinion is with the record as a whole,
and whether the physician was practicing in her specialty.”

Ealy, 594

F.3d at 514 (citing 20 C.F.R. § 404.1527(d)).
In the case presently before the Court, the administrative law
judge expressly considered Dr. Hayes’ opinion, but assigned it “no
more than minimal weight:”
The claimant also underwent a psychological evaluation in
connection with her application for county disability
benefits and which led to the preparation of a mental

12

functional capacity assessment by that evaluator. This is
a one-time evaluator and is not a treating source; as such,
the opinion cannot be afforded controlling weight under
Social Security regulations.
While the mental functional
capacity assessment found marked impairment in nearly all
areas (and in those few areas where the claimant was not
found to be markedly impaired, she was found to be
moderately impaired), the claimant’s GAF score was assessed
at 51, which corresponds to only moderate symptoms.
Furthermore, these limitations are based solely on the
claimant’s subjective reports and do not conform to the
claimant’s reported daily activities or lack of substantive
mental health treatment.
For instance, the claimant is
listed as markedly impaired in nearly all areas, however,
the claimant reports living alone (although I note that the
claimant led this opinion source to believe that she was
taken care of by her parents).
In light of these
shortcomings, I find that this opinion can be given no more
than minimal weight.
PAGEID 76 (citations omitted).

The administrative law judge provided

specific reasons for assigning “no more than minimal weight” to Dr.
Hayes’s opinion and it is apparent that the administrative law judge
considered the appropriate factors.

Under these circumstances, a

formulaic recitation of factors is not required.

Cf. Friend v. Comm’r

of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s
opinion permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating
physician’s opinion, strict compliance with the rule may sometimes be
excused.”).

Further, the administrative law judge’s reasons for

assigning “no more than minimal weight” to Dr. Hayes’s opinion are
supported by substantial evidence.

Significantly, Dr. Hayes based his

GAF of 51 on plaintiff’s subjective reports, see PAGEID 572, and, as
noted by the administrative law judge, see PAGEID 75-76, plaintiff
made inconsistent statements to Dr. Hayes regarding her activities of

13

daily living.

Compare, e.g., PAGEID 571 (reporting that she does not

prepare her own meals or do dishes), with PAGEID 97-98 (plaintiff’s
testimony that she is able to cook and do dishes).
It is well-settled that the Commissioner's decision, if
supported by substantial evidence, must be affirmed even if the
plaintiff’s position is also supported by substantial evidence.

See

Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007).
Because the administrative law judge applied the correct standards in
his evaluation of Dr. Hayes’s opinion, and because substantial
evidence supports his findings in that regard, the Court finds no
error in that evaluation.
Finally, plaintiff argues that the administrative law judge
erred in omitting from plaintiff’s severe impairments a right rotator
cuff tear and a right ankle fracture.

Statement of Errors, p. 12.

“Administrative law judges employ a five-step sequential inquiry to
determine whether a claimant is disabled within the meaning of the
Social Security Act.”

Warner v. Comm’r of Soc. Sec., 375 F.3d 387,

390 (6th Cir. 2004) (citing Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 474 (6th Cir. 2003)).

“The claimant bears the burden of proof

through the first four steps of the inquiry, at which point the burden
shifts to the Commissioner to ‘identify a significant number of jobs
in the economy that accommodate the claimant's residual functional
capacity . . . .’”

Id. (quoting Jones, 336 F.3d at 474).

In the case

presently before the Court, plaintiff argues that the administrative
law judge erred at step two by not including a right rotator cuff tear

14

and right ankle fracture in the list of plaintiff’s severe
impairments.

Statement of Errors, pp. 12-13.

The finding of a severe

impairment at step two of the sequential analysis is, however, a
threshold determination; the finding of a single severe impairment is
sufficient and will require the continuation of the sequential
analysis.

See Maziarz v. Sec’y of Health & Human Servs., 837 F.2d

240, 244 (6th Cir. 1987).

The administrative law judge found at step

two of the sequential analysis that plaintiff suffers severe
impairments, which consist of degenerative disc disease, fibromyalgia
syndrome, depression, panic disorder with agoraphobia, sciatica,
history of asthma, and obesity.

PAGEID 66.

The administrative law

judge’s failure to find additional severe impairments at step two is
“legally irrelevant,” see McGlothin v. Comm’r of Soc. Sec., 299 F.
App’x 516, 522 (6th Cir. 2008), so long as the administrative law
judge continued the sequential analysis and considered plaintiff’s
severe and non-severe impairments in determining plaintiff’s residual
functional capacity.

See id.; O’Neill v. Comm’r of Soc. Sec., No.

1:11-cv-1181, 2013 WL 1436648, at *5 (W.D. Mich. Apr. 9, 2013); Dodson
v. Comm’r of Soc. Sec., No. 1:12-cv-109, 2013 WL 4014715, at *2 (E.D.
Tenn. Aug. 6, 2013).
Plaintiff acknowledges that the administrative law judge found
severe impairments and that, in determining plaintiff’s residual
functional capacity, he found “limitations in the use of the right
shoulder (no overhead reaching), and the lower extremities (limited to
no more than two hours of standing or walking).”

15

Statement of Errors,

p. 12.

Plaintiff argues, however, that the administrative law judge

did not expressly consider the right rotator cuff tear and right ankle
fracture in determining plaintiff’s residual functional capacity.
Specifically, plaintiff argues that the administrative law judge’s
statement that plaintiff “̔recuperated well from these interventions
[physical therapy for her ankle and surgery for her shoulder] and they
have resolved the acute injuries that accounted for the claimant’s
shoulder and ankle pain[,]’” combined with the finding of non-severity
of these impairments, “suggests that [the administrative law judge]
did not consider these impairments as limiting within his RFC
analysis.”

Statement of Errors, pp. 12-13. Plaintiff’s arguments in

this regard are not persuasive.
The administrative law judge found that plaintiff suffers from
severe impairments and, continuing the sequential analysis, considered
plaintiff’s severe and non-severe impairments in determining
plaintiff’s residual functional capacity.

See PAGEID 73.

Plaintiff’s

arguments to the contrary notwithstanding, the administrative law
judge’s acknowledgement that plaintiff “underwent physical therapy for
her ankle and shoulder as well as a rotator cuff repair surgery” and
his statement that plaintiff “recuperated well from these
interventions and they have resolved the acute injuries that accounted
for the claimant’s shoulder and ankle pain,” id., confirm that these
impairments were considered by the administrative law judge in
determining plaintiff’s residual functional capacity.

Accordingly,

the administrative law judge’s failure to include the right rotator

16

cuff tear and the right ankle fracture in the list of severe
impairments is “legally irrelevant.”

See McGlothin, 299 F. App’x at

522; O’Neill, 2013 WL 1436648 at *5; Dodson, 2013 WL 4014715 at *2.
Furthermore, to the extent that plaintiff disagrees with the
administrative law judge’s residual functional capacity assessment
and, specifically, the limitations incorporated in that assessment in
connection with the right rotator cuff tear and right ankle fracture,
plaintiff does not argue that the administrative law judge’s
determination lacks substantial support in the record. Similarly,
plaintiff has not pointed to any evidence of greater limitations posed
by these impairments than those found by the administrative law judge.
In short, the Court concludes that the administrative law judge
applied all proper standards and that his decision is supported by
substantial evidence.

It is therefore RECOMMENDED that the decision

of the Commissioner be AFFIRMED and that this action be DISMISSED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to

17

de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

December 26, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

18